Published in Criminal Law on May 5, 2022.
Sometimes, defendants in criminal cases are offered probation as part of a plea deal that takes the place of jail time.
This can happen when the prosecutor or the judge does not feel that incarceration is warranted but that some form of supervision and possibly counseling are needed.
When probation is ordered there is both a term of probation and a suspended sentence.
When a defendant violates the terms of the probation, it may be considered a slap in the face to the people who gave the defendant the chance to stay out of jail or prison.
Judges and prosecutors often feel as though they have no choice but to violate the individual’s probation and to sentence them to executed time.
On the other hand, a defendant may have had an extenuating reason for an apparent probation violation or there may not have been a violation at all.
If that is the case, you will either need to reach an agreement with the state, admit your violation but argue the sanctions to the court, or fight the violation in a fact-finding hearing.
Ultimately, it’s important to know what a sentence for violation of probation in Indiana could mean for you and what you can do to prevent the judge from throwing the proverbial book at you. Please don’t hesitate to contact our experienced Indiana probation violation lawyers.
Common Reasons for an Indiana Probation Violation
While all probation violations stemming from a probationer’s failure to comply with the terms of their probation, there are two ways to violate your probation. The first is by picking up a new case and the second is by violating a technical term of probation. Any new arrest can lead to a violation of probation hearing. Some of the most common new charges that can put you in violation of your probation include:
- Theft charges,
- Drug possession,
- OVWI offenses, and
- Domestic violence allegations.
Additionally, any time you don’t follow through with what your probation officer asks you to do—otherwise known as conditions of your probation—you could be in violation of your probation. Below are some of the most common technical violations of probations:
- Failing a drug or alcohol test;
- Failing to report to your probation officer;
- Failure to seek or obtain employment;
- Failure to enroll in or attend mandatory services; and
- Failure to complete community-service requirements.
Notably, the failure to satisfy a financial obligation, such as fines or costs, can only serve as the basis for a violation of probation if the probationer “recklessly, knowingly, or intentionally fails to pay.”
Will You Go to Jail for Violating Probation? How Long is Jail Time for Probation Violation?
It is a distinct possibility. However, it is far from a certainty. There are several questions that a judge must answer before finding you in violation of your probation and sentencing you to a term of incarceration. And even once the judge finds someone in violation of their probation, there are a number of factors that go into a judge’s decision to punish a defendant who has violated probation with jail time.
Some of the most important questions are
Did Your Probation Violation Show Willful Misconduct?
If you are charged with violating probation, you are allowed to contest the charge. Just as you would be in any criminal charge, you are presumed innocent and the prosecution has the burden of proving that you did, in fact, violate your probation.
The standard of proof, however, is lower in an Indiana violation of probation hearing. In a criminal trial, the prosecution must prove beyond a reasonable doubt that you are guilty. However, at a probation hearing, the prosecution need only prove by a preponderance of the evidence that you violated any term of your probation.
In other words, they must prove that it is more likely than not. There are no unimportant terms of probation, so even violating a single condition of your probation that appears to be minor can result in a harsh penalty.
On the prosecutor’s side, if they can show your probation violation showed a conscious indifference to the mandates of the court, your chances of seeing jail time for the violation are more likely, especially if the probationer has been charged with or convicted of a new crime.
Has the Probationer Previously Violated Their Probation Sentence?
Probationers can be found to be in violation of probation in Indiana and be given another chance to show the court they can follow the rules given to them. However, the more chances the court gives someone, the less likely the court is to show leniency in the event of a subsequent violation. If the violation is serious, a judge can sentence you to jail time for a first violation. However, for technical violations or violations involving less serious new criminal charges—such as traffic or petty theft offenses—a judge could very well continue your probation. Alternatively, the judge could extend the original period of probation.
In short, if a court finds that someone has not taken advantage of their second, third, or fourth chance, the likelihood of an executed sentence is likely to increase.
What Happens if I Have Been Found to Have Violated a Term of My Probation?
If you admit to the probation violation or the court determines you have violated the probation sentence, the court has the discretion to take a wide variety of actions against you.
This includes sentencing you to jail or prison, ordering you to community corrections, continuing you on probation, extending your probation, adding terms to your probation, or closing out the probation.
The court also has discretion as it relates to the amount of time you may get.
The judge can sentence the probationer up to the suspended sentence.
You do not work off time on probation as you do during an executed sentence so even if you violate the probation sentence on your last day the court can still give you your entire backup time.
Factors that Influence Potential Consequences for Violating Probation
The question as to whether or not the court will sentence you to jail or prison and how much time you receive depends on a number of factors. These include:
The Seriousness of the Violation
Not all probation violations are created equally. For instance, if you fail to pay court fees despite your best effort you cannot be sentenced to jail.
If you are guilty of a drug possession offense and relapse, the court may demand that you go into drug counseling or a rehab program.
If, however, you tamper with drug results in order to dupe the court, that shows a willful attempt to deceive the court and the judicial process.
If your violation shows a serious disregard for the court proceedings, the court will take that very seriously.
For instance, if you are on probation for an OVWI, and you are caught driving under the influence again, the court is likely to regard this as an egregious offense because you are putting others at risk.
A Prior Probation Violation
If this is the second or third time a defendant has violated probation, the chance that the judge will sentence the probationer to jail increases exponentially.
It’s important to take court orders seriously. Judges will become less forgiving each time a violation occurs. For example, a probation violation 1st offense may result in the judge giving you another chance, especially if the violation was a minor one.
For example, a judge may not send a probationer to jail for failing to complete all community service hours towards the end of a lengthy period of probation during which there were no other issues. They might just extend probation to give you time to complete that condition. If the judge gives you that chance and keeps you out of jail, a probation violation 2nd offense is much more likely to result in your incarceration.
The exception to this general rule is if you have a truly good reason for the violation, it was very minor, or it had been a long time since the last violation. For example, if you picked up a shoplifting case towards the beginning of your probation, made it all the way to a week before the termination, and then were cited for reckless driving, the judge may decide to give you a third chance. However, it would take a truly understanding judge to consider continuing your probation for a probation violation 3rd offense.
Of course, there are situations in which a probationer stays out of jail despite many continued violations. Although rare, these cases usually involve a probationer who is making significant progress, is not picking up any serious new cases, and appears at every probation hearing.
There are some circumstances where a judge may sympathize with a probationer who has missed a court appearance for a valid reason.
For instance, if there was an injury to a child or there was a death in the family. In cases where the violation can be explained due to extenuating circumstances, the judge is far more likely to let the probationer off with a warning.
Recommendations of the Probation Agent and Prosecution
In a number of circumstances, judges will simply do whatever a probation agent recommends. In other cases, an aggressive prosecutor may recommend a stiff sentence.
In either case, it is necessary to have an experienced probation attorney help mitigate any damage that a violation will do.
The Attitude of the Judge
Judges can be liberal or conservative and among them, there are certain crimes that they may take a hardline stance on.
An effective defense attorney understands the judges’ predispositions and can effectively argue a position that will resonate with them.
It’s incredibly important that you have an experienced defense lawyer advocating for you. In addition, if the judge is not in a particularly good mood that day, it could impact how he perceives your violation.
Talk to an Indianapolis Criminal Defense Attorney
Ideally, you don’t want to be caught violating probation.
At the very least, it leaves you at the mercy of the court, and at the most, it can force you to serve unnecessary time.
If you are charged with violating a probation sentence, having a legal team on your side who knows the prosecutors, and the judge, and can effectively argue on your behalf will produce far better results than handling it alone.
The Indiana probation violation lawyers at Eskew Law, LLC have managed several cases just like yours
If you’ve been charged with a violation of probation in Indiana, give us a call or contact us online, and we can begin discussing your options today.